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'Not Yet' To Anti-War Lawsuit

You can lead judges to the ledge of controversy but you cannot make them jump. You can raise issues about the legality of the looming war on Iraq but you cannot make the federal courts substantively resolve those issues, at least not yet. That's about the most fundamental takeaway I can muster from an appeals court ruling in Boston Thursday that upheld the dismissal of a war powers lawsuit against President George Bush and Secretary of Defense Donald Rumsfeld.

The suit, brought by several members of Congress and a few "active-duty" members of our armed forces, sought an order from the courts preventing the White House and Pentagon from starting a war with Iraq. The plaintiffs argued that Congress never legitimately gave the President the authority to conduct a war and, alternatively, that the Executive and Legislative branches are inappropriately in cahoots with each other that authority, requiring the Judicial branch to set things right.

The suit raises genuine questions that, in a more convenient world, the courts would take the time and effort to answer. Foremost among these is: what's the point of giving Congress the sole constitutional power to declare war if Congress isn't going to use that power? Remember, there has never been a formal declaration of war against al Qaeda or Afghanistan, let alone Iraq. It would also be a wonderfully appropriate time to resolve the ambiguities contained in the War Powers Act -- passed after the Gulf of Tonkin Resolution fiasco that kick-fired the Vietnam War -- and its application in a 21st Century world.

But the answers to those vital questions will have to wait for another day, or perhaps for another decade. The 1st Circuit passed on the merits of the complaint and instead affirmed the dismissal of the case on procedural grounds. "We have concluded that the circumstances call for judicial restraint," a three-judge panel unanimously ruled.

"The theory of collision between the legislative and executive branches is not suitable for judicial review, because there is not a ripe dispute concerning the President's acts and the requirements of Congress." And the plantiffs' claim based upon the theory of collusion between and among the other two branches is "presently insufficient to present a justiciable issue."

In other words, the court ruled: don't bother us with this lawsuit now because the conflict with Iraq may turn out all right in the end and we don't want to stick our necks out if we don't have to. And, the court just as well might have added, don't expect great things from us if you re-file your complaint after a war begins because there are plenty of substantive reasons why the courts should not and cannot and almost certainly will not get involved in the political, military and diplomatic matters that make up your garden-variety war.

For example, the court specifically excluded from its analysis in this go-around the notion that matters of war and peace are, or ought to be, "political questions" that the courts should not answer. This issue will come up again should the lawsuit come up again and if you do not believe me believe Circuit Judge Sandra Lynch, who ended the opinion with this "back-off" line. She wrote: "As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches."

And if war does come, and if this lawsuit is re-filed, the 1st Circuit already is on record as declaring that it does not believe that Congress has abdicated its responsibilities to the President. "To the contrary," Judge Lynch wrote, "Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade, under three different presidents of both major political parties, and during periods when each party has controlled Congress."

Think of it this way. The appeals court repelled this case with its first line of argument -- the procedural arguments of ripeness and justiciability -- while at the same time digging two other legal trenches that are bound to repel any future attempts to drag the judiciary into the fray. And the court accomplished this series of legal Maginot Lines without affirmatively taking sides in the case; without telling the plaintiffs that their case on the merits isn't worth the paper it was printed on.

Deciding a case on the slimmest possible grounds while saving the broader questions for a day that may never come -- that's just one of the many reasons why it is great to be a federal appeals judge. And that's why the 1st Circuit's decision says a lot without saying much at all. One of the lawyers for the plaintiffs, John Bonifaz, told the Associated Press that "this case is very much alive." But if it's alive, I'd hate to see what it looks like dead.